Judge Cannon's hearing (UPDATE)

 To the dismay of many, it was reported that Judge Cannon had the wifi turned off in the courthouse and prohibited reporters from tweeting or otherwise reporting on the hearing from court. There was also no call-in number so members of the public and press could listen in on the hearing.  So all of the reporting came after court was concluded.  What is this, the dark ages? 

 UPDATE -- I've been told that the wifi was not turned off and instead it was just overloaded with the number of users; I've also been told that it was not Judge Cannon's new rule to prohibit reporting from inside the courtroom -- she just reminded everyone of the local rule 77.1.

Anyway, here is the NY Times coverage of the hearing:

A federal judge signaled on Thursday that she remained open to granting former President Donald J. Trump’s request to appoint an independent arbiter to go through documents the F.B.I. seized from him last month, but stopped short of making a final decision.

After a nearly two-hour hearing, the judge, Aileen M. Cannon of the Federal District Court for the Southern District of Florida, reserved judgment on the question of whether to appoint a so-called special master in the case, saying she would issue a written order “in due course.”

Notably, Judge Cannon did not direct the F.B.I. to stop working with the files, which the Justice Department has said have already undergone a preliminary review by law enforcement officials.

Judge Cannon, who was appointed by Mr. Trump in 2020, also indicated that she would unseal a more detailed list of the documents the F.B.I. took during its Aug. 8 search of Mar-a-Lago, Mr. Trump’s private club and residence in Florida. She had earlier ordered the Justice Department to provide the list to Mr. Trump’s legal team at its request. It was not clear when it would become public.

During the hearing, Judge Cannon pressed the government to explain what harm could come from appointing a special master.

Jay I. Bratt, the head of the Justice Department’s counterintelligence section, told her that a special master could slow down an assessment of the risk and damage to national security being conducted by the Office of the Director of National Intelligence — as well as an assessment of whether the seized documents contain the sort of national security secrets whose unauthorized retention is a crime under the Espionage Act.

“We are dealing with over 300 records here” that had classification markings on them, Mr. Bratt said. “That process has begun. That process needs to continue.”

But Judge Cannon appeared to suggest that if she did appoint a special master, she would do so in a way that would not hinder the security risk assessment.

The judge also left unclear whether she would limit the scope of any special master’s work to setting aside a small number of documents that may be subject to attorney-client privilege.

 

"President Trump's" reply

You can read it here.

Thank goodness the lawyers start with explaining to the reader in the first line that references to "President Trump" mean "President Donald J. Trump."

Sorry, it's a pet peeve of mine.  

Anyway, Judge Cannon will be holding a hearing this afternoon in West Palm Beach.  It will be interesting to see if she sticks to her guns and appoints a special master.  And if so, who will the judge appoint.  

More to follow.

DOJ strikes back

 Here's the 36 page filing.

It includes pictures of the classified documents:

Politico covers the filing here:

“The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation,” Justice Department counterintelligence chief Jay Bratt wrote.

“That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the ‘diligent search’ that the former President’s counsel and other representatives had weeks to perform calls into serious question the representations made in the June 3 certification and casts doubt on the extent of cooperation in this matter,” he added.

***
DOJ indicated that the “commingling” of Trump’s personal effects with classified materials is “relevant evidence of the statutory offenses under investigation.” Three classified documents were found in a “desk drawer,” prosecutors said, without providing further details. Trump’s claims that the items should be returned to him have no merit, they added.

“Any Presidential records seized pursuant to the search warrant belong to the United States, not to the former President,” Bratt argued.

The submission to a federal judge in Florida opposes Trump’s request for an independent third party to review the records the FBI seized during their Aug. 8 raid on the former president’s Florida compound. DOJ urged U.S. District Court Judge Aileen Cannon to oppose Trump’s request for a so-called “special master,” contending that his belated request was merely a bid to disrupt the investigation.

In particular, Bratt urged Cannon to reject Trump’s claim that any of the documents seized were subject to a claim of executive privilege by him — and therefore unrecoverable by the current administration.

“The former President cites no case — and the government is aware of none — in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch,” Bratt wrote.

Here comes the Special Master

If you recall, Judge Cannon showed some skepticism over Trump's lawsuit requesting a special master and ordered Trump's legal team to beef up its request.

They did so Friday evening in this pleading.

The next day, before DOJ could respond, Judge Cannon issued a preliminary order saying that she was inclined to appoint a special master.   

The government will have a chance to respond by Tuesday and then the Court will have a hearing on Thursday.  But this all seems beside the point as Cannon will likely follow through and appoint a special master.  

Here's hoping we get special masters in any case in which sensitive or privileged material is being reviewed by DOJ. Criminal defense lawyers have long complained about  DOJ's filter process, but the 11th Circuit recently turned back a challenge to a filter team in U.S. v. Korf.  Perhaps the Trump case will make some headway with the issues of having DOJ doing its own filter of privileged or otherwise sensitive documents.

Redacted search warrant affidavit in Mar-a-lago search released

 You can read it here.

Lots and lots of redacted pages.

And here is the previously sealed government response to what should be redacted.

Career Opportunities (Let's Make Lots of Money and Then Donate?)

By Michael Caruso

Mr. Byrne's post yesterday reminded me of a recent article and our professional choices.

Let's assume we all want to "do good." Is the way you do good effective? Is the way you do good actively harmful? The "effective altruism" movement arose out of a desire to make sure that attempts to do good actually work.

For a time, the E.A. movement recommended that "inspirited young people should, rather than work for charities, get jobs in finance and donate their income." In other words, does a person do more good volunteering for Teach for America for two years after graduation or working at Goldman Sachs and donating 85% of their income to a charity with a proven record of saving lives? At TFA, a young person may impact many lives, and the ripple effect of that work cannot be quantified. But, according to Give Well, about $7 protects a child from malaria. In 2021, Give Well directed funding to the Malaria Consortium to support this program at an estimated average cost-effectiveness of $5,000 per life saved.

Because I'm paywalled, I couldn't read the DBR article linked by Mr. Byrne. But here is a chart from earlier this year reporting the associate salary pay scale. If you're a 4th-year associate making around $300,000 a year and donate "only" 50% of your gross income, you can save 30 lives in one year!

Here's another example. Vitamin A deficiency leaves children vulnerable to infections and can lead to death. Give Well attributes over 200,000 deaths to Vitamin A deficiency each year, and that about $1 will deliver a vitamin A supplement to a child in need. In 2021, the group directed funding to Helen Keller International to support this program at an estimated average cost-effectiveness of $3,500 per life saved. That effective altruist 4th year at Big Law could save over 42 lives. 

This approach has critics, of course, most notably the philosopher Amia Srinivasan. She wrote: "Yet there is no principled reason why effective altruists should endorse the worldview of the benevolent capitalist. And although [E.A.] focuses on health as a proxy for goodness, there is no principled reason, [] why effective altruism couldn’t also plug values like justice, dignity or self-determination into its algorithms. Effective altruism has so far been a rather homogenous movement of middle-class white men fighting poverty through largely conventional means, but it is at least in theory a broad church." But she conceded the basic power of the movement’s rhetoric: “I’m not saying it doesn’t work. Halfway through reading the book I set up a regular donation to GiveDirectly,” one of GiveWell’s top recommended charities.

Srinivasan and other critics have valid points. E.A. tends to focus on single actions and their proximate consequences and, more specifically, on simple interventions that reduce suffering in the short term and largely neglects coordinated sets of actions directed at changing social structures that reliably cause suffering. According to critics, this neglect is politically dangerous because it obscures the structural roots of global misery, thereby weakening existing political mechanisms for positive social change and perhaps contributing to its reproduction.

At the very least, the E.A. movement has generated a significant volume of useful information to help us make decisions as to how we spend our time and our money to "do good."

Trump updates

 1. Magistrate Judge Reinhart orders the search warrant affidavit unsealed by noon tomorrow but with the redactions proposed by the government.  Here's the order.

2.  Judge Cannon has rightfully ordered the Trump lawyers to give her some authority on what they are proposing.  That's due tomorrow.  Perhaps I was wrong to say she was the best draw for him.  We shall see.  Here's the order.

New Firms in Town Gobbling up Associates

 

By John R. Byrne

A bunch of big national firms have recently placed their stakes in the Miami legal market. And now they're gobbling up legal talent. The DBR covers it here.

Kirkland & Ellis, Sidley Austin, Winston & Strawn, and Quinn Emanuel will bring in summer associates in 2023. King & Spalding, which also launched a Miami office, may as well.

There's also an arms race of sorts for lateral associates. Collectively, the firms have pulled in over a dozen associates from local firms, with the numbers set to grow. Looks like there will be more lawyer movement afoot in the coming months.